218 F. 288 | 9th Cir. | 1914
(after stating the facts as above).
“That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the_Secretary of the Interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way.”
And section 5:
“That this act shall not apply to any lands within the limits of any military, park, or Indian reservation, or other lands specially reserved from sale, unless such right of way shall be provided for by treaty stipulation or by act of Congress heretofore passed.”
Under an act entitled “An act to repeal timber culture laws, and for other purposes,” adopted March 3, 1891, the President of the United States was authorized to set apart and reserve, from time to time, in any state or territory having public land bearing forests, any part of the public lands wholly or in part covered with.timber or undergrowth, whether of commercial value or not, as public reservations ; the same to be by public proclamation declaring the establishment of such reservations and the limits thereof. 26 Stat. 1103. By a clause contained in an act -making appropriations for sundry civil expenses of the government for the year 1897, adopted June 4, 1897, the Secretary of the Interior is authorized to make provision for protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside, or which might thereafter be set aside under the act of March 3, 1891, and to make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction. By the same act the Secretary of the Interior is authorized and empowered, under such rules and regulations as he may prescribe, to sell and dispose of the dead timber and matured and large growth trees found upon such reservation (30 Stat. 35); and the President is authorized to modify executive orders establishing forest reserves, and to vacate the same altogether (30 Stat. 36).
By another act making appropriations to provide for deficiencies, adopted March 3, 1899, this clause was inserted, namely:
*293 “That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.” 30 Stat. 1233.
For some time prior to the adoption of the act of March 3, 1875, it had been the policy of the general government to grant by special acts rights of way for railroads over the public lands, and these carried their own terms and conditions. No doubt believing the purpose could as well be subserved by a general act, Congress adopted the act of 1875.
Much discussion is indulged in respecting t>he meaning and legislative significance of the words “public lands,” as contained in section 1 of the act; but we are not impressed that it is necessary to enter at all upon that inquiry, as we believe that section 5 affords a sufficiently clear interpretation of the statute for the purposes of this case. That section makes the act inapplicable to any lands within the limits of any military, park, or Indian reservation, or other lands specifically reserved from sale. It is the cardinal oolicy and purpose of Congress and the general government that the lands comprised within forest reservations shall be specially reserved from sale and disposal to settlers and other persons, except as more recently expressly provided by law, while such reservations remain unrevoked by direction or order, of the President. As said in Shannon v. United States, 160 Fed. 870, 873, 88 C. C. A. 52, 55:
“The creation of such a reservation severs the reserved land from the public domain, disposes of the same, and appropriates it to a public use.”
Nor does it seem to us that the rule ejusdem generis helps the respondent, for national forest reserves are set apart for a definite, permanent, and public use, the same as are military, park, and Indian reservations, only that the use is different. So is the use of a military reserve different from that of a park reserve or an Indian reservation, and an Indian reservation from that of a park, but all are created and set apart' for special governmental use. And a forest reserve, under the conservation policy of the government, is just as essential and vital to the effectuation of the government’s purposes in that direction as a military reserve, a park, or an Indian reservation for the purposes of the government to the ends for which they are respectively established.
“Congress establishes a forest reserve for what it decides to be national and public purposes.” Light v. United States, 220 U. S. 523, 537, 31 Sup. Ct. 485, 488 (55 L. Ed. 570).
Congress by later enactments has so interpreted the act. This is evidenced by an act of July 8, 1898, c. 645 (30 Stat. 729, c. 645), and another of January 10, 1899 (30 Stat. 783, c. 44). The first of these acts grants a right of way to the Cripple Creek Short Tine Railway Company through the Pikes Peak Timber Tand Reserve, “subject to the rules and restrictions and carrying all the rights and privileges” of the act of March 3, 1875, but providing “that no timber shall be cut by said railroad company for any purpose outside of the rights
The second act (January 10, 1899), grants the right of way to the Saginaw Southern Railroad Company through the San Francisco Mountains Forest Reserve, a reserve set apart and established by President McKinley, “s^id right of way being granted subject to the rules and restrictions and carrying all the rights and privileges” of the act of 1875. It must have been the view of Congress that without these enabling acts a’railroad company had no right, under the act of 1875, to cross forest reserves; otherwise there was no need of their enactment.
For other acts of like nature, see Act May 28, 1896, c. 258, 29 Stat. 190, Act June 6, 1896, c. 336, 29 Stat. 253, Act May 18, 1898, c. 343, 30 Stat. 418, and Act Feb. 28, 1899, c. 223, 30 Stat. 910.
So also, is the act of March 3, 1899, in full recognition of the same thought. In form provided by existing law, the Secretary of the Interior is authorized to approve surveys and plats of rights of way for railroads across any forest reservation, thus delegating the power that Congress formerly exercised in that respect to the Secretary of the Interior. Judicial interpretation, so far as authorities have been cited, is the same way. United States v. Bailey (C. C.) 178 Fed. 302.
In an early case in the Supreme Court (Wilcox v. Jackson, 13 Pet. 498, 10 L. Ed. 264), it appears that the Secretary of War requested the Commissioner of the General Land Office to direct a reservation of lands to be made, and one was accordingly made, for military purposes, and the act of the Secretary of War in this respect was held to be the act of the President. In another case (Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915), where the Commissioner of the General Rand Office directed the registers and receivers of the local land offices to withhold from sale all odd-numbered sections within a described area, the Supremo Court, speaking through Chief Justice Waite, applies this reasoning:
“If the President himself, lied signed the order in this ease, and sent it to the register's and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we c-armot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson that such an order sent out from the appropriate' executive department in the regular course of business is the legal equivalent of the President’s own order to the same effect.”
The reasoning is apt as it respects the case at bar. The Commissioner of the General Rand Office by order withdrew the lands comprised within the reserve from sale and disposal, and 3Ithough it was pending an investigation as to what lands should be finally included within a reserve, it was in effect the act of the President and tantamount to an executive order for that purpose, so that thenceforth the land was especially reserved from sale. This in- itself would seem sufficient to preclude the defendant from the acquirement of a right of way over the reserve under the act of 1875.
, It is urged that the cases last cited pertained to the correlative rights of the parties as between the railroad company and the settler, and that the doctrine-announced ought not to apply as between the railroad company and the government. And in this relation it is further urged that when the right of way was finally located the company took title thereto by relation back to the time of making due proofs of organization and filing such proofs with the Secretary of the Interior. This under the doctrine as promulgated touching grants of lands to railway companies, that when the location of a road is finally established the grant takes effect bv relation back to the date of the grant, and by a fiction of law the grant is called one in prsesenti. As said in Railway Co. v. Ailing, 99 U. S. 463, 475 (25 L. Ed. 438):
“When such location and appropriation were made, the title, which was previously imperfect, acquired precision, and by relation took effect as of the date of the grant.”
See, also, Schulenberg v. Harriman, 21 Wall. 44, 22 L. Ed. 551; Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. Ed. 201.
The grant was termed a float in the meanwhile; but the title passed to no specific land, because it lacked identification. But the analogy to the present case is not apparent. Here counsel would treat the right of way as” a float when the right of way is dependent absolutely upon its own definite location. It is not a grant of lands dependent upon a location of the road, but a right of way dependent upon its own location. No preliminary or other location is indicated by the proofs of organization. Article 8 of the articles of incorporation indicates that the company intends to construct a road from some point to be located on the east boundary line of the state' of Idaho, between the forty-sixth and fifty-seventh degrees of north latitude, thence extending in a general westerly direction to some convenient point to be located on the west boundary line of the state. To call the right of way dependent upon such a designation of the probable ten-mini and route of the road a float would manifestly be a palpable misnomer. It could not by any stretch of the imagination be so termed. As was said in Jamestown & Northern Railroad Co. v. Jones, supra:
“Different considerations apply to the grant of lands than to the grant of the right of way.”
While the filing of proofs of organization authorizes the railroad company to locate its right of way over public lands, it acquires no
“to the nonvesting of any right as against the United States, and not as denying the priority of right in the acquisition of the premises as between par-tios growing out of priority of application.”
We see no escape from the conclusion that the government’s establishment of the reserve is paramount, that the lands comprised thereby were especially reserved from sale, and that the defendant railway company failed in the acquirement of a right of way for its railroad across the-reserve in pursuance of the act of 1875.
The government’s position is that the act of March 3, 1899, not only affords the means by which such a right of way may be acquired, but that it is potent to authorize the Secretary of the Interior to prescribe rules and regulations to be observed and the conditions, within reasonable bounds, upon which a railroad company may obtain the privilege contemplated.
The act provides that in form provided by existing law, the Secretary of the Interior may file and approve surveys and plats of any right of way for a railroad over and across any forest reservation, when in his judgment the public interests will not be injuriously affected thereby. It is somewhat obscure, and just what Congress intended to accomplish by its adoption is not ieadily apparent; but one thing seems to be of clear intendment, and that is that the Secretary of the Interior shall only file and approve surveys and plats of rights of way when in his judgment the public interests will not be injuriously affected. In other words, the Secretary of the Interior is made the arbiter as to when such surveys and plats shall be approved, and without such approval it is plain that a railroad company cannot acquire a right of way across a forest reserve. If in his judgment the public interests would be injuriously affected, it would seem he could prevent, by refusal to approve the surveys and plats, any occupation of the reservations for right of way purposes. Having the power to prevent, it would seem to follow that he also has the power to approve surveys on conditions that would provide against threatened in
Acting upon this principle, the Secretary of the Interior has, for the exercise of his judgment in the premises, heretofore adopted and promulgated certain rules and regulations and prescribed certain conditions calculated to safeguard the public interests in that regard. These require of the applicant for a right of way a stipulation that the right of way shall not be so located as to interfere with the proper Occupation of the reservation by the government; that the applicant will cut no timber outside of the right of way; that he will remove no timber within the right of way, except as rendered necessary by the proper use and enjoyment of the privilege; that he will remove from the reservation, or destroy under proper safeguards, all standing, falleh, or dead timber, etc., for such distance on each side of the central line as may be determined by the General Rand Office to be essential to protect the forest from fire, and will also furnish men and materials for fighting fire, if it can be done without serious injury to applicant’s .business. Such rules and regulations also require the applicant to execute a bond to the government, conditioned that the makers thereof will pay—
“for any and all damage to the public lands, timber, natural curiosities, or other public property on such reservation, or upon the lands of the United States, by reason of such use and occupation of the reserve, regardless of the cause or circumstances under which such damage may occur.”
No construction can be allowed until an application for the right of way has been regularly filed in accordance with the laws of the United States and has been approved by the Department, or has been considered and permission specifically given. The regulations have since been changed, so that the applicant must enter into stipulation and execute such bond as the Secretary of Agriculture may require for the protection of such reserves.
Now, referring to the authority expressly conferred upon the Secretary of the Interior by the act of June 4, 1897, to make rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction, thus delegating to such department a broad scope of regulation touching forest reservations, it would indicate that when the act of 1899 was adopted, Congress assumed that the Secretary already had ample power and authority to regulate by rule and the imposition of proper conditions the occupation generally of forest reserves, and the especial purpose of that act was to render the power specific as respects occupation for right of way for railroad purposes; hence the peculiar wording of the act.
The authority accorded the Secretary of the Interior to exercise his judgment for the conservation of the public interests respecting forest reserves carries with it, by strong implication, the authority to make rules and regulations for the better and more efficacious exercise of his judgment. The act of adopting such rules and regulations is not legislative, but merely administrative for enforcing the
But we think in the present case the power exercised by the Secretary of the Interior in making the rules and regulations in question, and to prescribe the conditions imposed, is clearly implied by the terms of the statute in view of the previous legislation pertaining to the conservation of forest reserves. The conclusion thus deduced touching the power and authority of the Secretary of the Interior respecting the forest reserves, and the approval of surveys and plats of rights of way across such reserves, affords ample consideration for upholding the Peck agreement, for the agreement was entered into upon the condition that the defendant company should have immediate permission from the Forest Service to begin construction of its railroad through the reserve.
It is first urged that there was no authority vested in the Executive Department to consent to a railway company which was not a qualified beneficiary under the act of 1875 entering upon the public lands for the purpose of constructing a railroad thereon. This objection is disposed of by what hds been previously determined as to the power and authority of the Secretary of the Interior to approve surveys and plats of rights of way over the forest reservations. So, also, has the objection been disposed of that there was n'o consideration for the promise embodied in the agreement.
The third objection is that the undertaking is an agreement to make an agreement, and that specific performance of such an engagement will not be decreed. This is the general rule, no doubt. But contracts of insurance and indemnity and agreements for the execution of formal contracts of security constitute well-settled exceptions to the general rule. 36 Cyc. 567. The stipulation agreed to be executed is in the nature of a contract to indemnify and save .harmless the United States, and as further security against any damage that might result
The fourth objection is that the stipulation demanded in the hill is not essentially the same as the one agreed to be executed under the Peck agreement. Some reference to the pleadings and the facts is necessary to an understanding of the situation. Prior to the institution of the suit the Secretary of Agriculture prescribed a form of stipulation, a copy being attached to the bill of complaint and marked ‘‘Exhibit G.” A copy also of the stipulation entered into relative to the Helena Forest Reserve is found in the evidence. A comparison of these two documents indicates a material difference between them, and, while the court is not disposed to require an execution of Exhibit G, we think complainant is entitled to an execution on the part of the railroad company of a stipulation “as nearly as practicable like” the one executed January 18, 1907, respecting the Helena Forest Reserve. The scope of the relief prayed is broad enough to require an execution of the stipulation, if the plaintiff is otherwise entitled to equitable relief.
It is further urged in this relation that the plaintiff made no tender of any stipulation, approximating as nearly as practicable the Helena stipulation, for defendant’s execution. This was unnecessary under the facts developed, as in the end the defendant declined to sign any stipulation as required by the Peck agreement.
The next objection is that the Peck agreement is too uncertain for specific performance. That is certain which is capable of being rendered certain. The Helena contract was touching the approval of a survey and plat of a right of way across a reserve under conditions similar to those obtaining in respect to the Coeur d’Alene reserve, and it was manifestly not a difficult task to suit the stipulation to the slight difference in conditions that really existed. The controlling features were practically the same in each case. We therefore deem the Peck contract susceptible of specific performance. Hebert v. Mutual Life Ins. Co. (C. C.) 12 Fed. 807.
The next objection is that the Peck agreement is lacking in mutuality. Peck was the general counsel of the defendant railroad company, and unquestionably authorized, in furtherance of its purpose in acquiring a right of way across the Cceur d’Alene Reserve, to enter into just such an agreement as he did. In implicit reliance upon said agreement, and in full pursuance of its intendment, the plaintiff, acting through its, duly authorized officer, granted immediate permission to enter upon the construction of its railroad across the reserve, and this prior to any approval of the surveys and plat of the company’s right of way. Having entered upon the construction of its railroad, the defendant so continued without interference on the part of the government until the latter part of November, 1907, when the stipulation Exhibit G was presented for execution. Execution was declined pending certain negotiations in Washington, D. C., and in the meanwhile the defendant was allowed to continue in its construction without compliance with the requirements of the Forest Service, and it so continued to proceed with the work until it had fully
“Want of mutuality is no defense to either party, except in cases of execu-tory contracts. It has no applicability to an executed bargain. There are many where the obligation is all upon one party. As to one, the obligation was fulfilled; the contract was executed when it was made. As to the other party, it remained executory. A consideration may be either something done, or something to be done, or a promise itself. When it is something already done, it is idle to talk of want of mutuality. That is to be considered only when the obligations of both parties are future.”
But counsel insist that advance permission was given subject to ratification by the company, and that the company has never ratified the Peck agreement. It has, however, availed itself to the fullest extent of the very advantages which it sought to acquire, and did acquire, by' virtue of the agreement. While delaying express ratification, it continued in the exercise and enjoyment of the right and privileges extended in pursuance of the agreement until it got absolutely everything it wanted, and now seeks, through the instrumentality of a friendly suit, to have the agreement declared nonenforceable because not ratified by it. It is too late, after enjoying the full benefits extended under the agreement, to insist now that defendant should not be required to perform because it has not expressly ratified such agreement.
It is further suggested that the defendant company had no knowledge of the agreement until Exhibit G was presented for execution. But this knowledge is imputed from the fact that the agreement was executed by the general counsel of the company, and, having been done in the line of his authority and in pursuance of an explicit duty enjoined, the company is bound to know what he did in that relation.
Another objection is that the agreement was signed under a mistake of fact on the part of Mr. Peck. But this cannot go to the sufficiency of the bill, as it is set up as a defense, and is to be determined upon the evidence adduced. The trial court has found against the defendant on the issue, and we approve the findings in that respect. We think it clear that the bill states facts pertinent and sufficient to entitle the plaintiff to specific performance of the Peck agreement.
The idea of the bill is to require due execution of the stipulation and bond, as contemplated by the Peck agreement, and to recover what damages the government has suffered in the meantime, in pursuance of the stipulation and bond, had they been given as agreed. Whatever damages might arise in the future would be provided against by the stipulation and bond executed under the decree of the court. In this view of the case, the damages prayed are but incidental to the main suit, and the bill is therefore not multifarious.
The trial court directed a form of stipulation to be entered into, one which the parties themselves had agreed to after the main decision was rendered, with an additional provision that it should be effective as of date May 10, 1907, and awarded damages in the aggregate of $68,489.
Being of the opinion that no error was committed, the decree of the District Court is affirmed; and it is so ordered.